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In response to these concerns, the amendment would require the Department for Transport and the Home Office to assist the relevant parties in drawing up guidance. Published guidance would be extraordinarily helpful in ensuring that we can avoid the new procedures resulting in dispute rather than co-operation and efficient operation. I beg to move.
Lord Faulkner of Worcester: This amendment seeks to provide a mechanism whereby airport operators, the police and other bodies could, with the consent of the Department for Transport and the Home Office, draw up relevant guidance for the purposes of new Sections 29A to 29E of the Aviation Security Act. These sections primarily concern the circumstances in which police services agreement disputes may be referred to the Secretary of State, and the Secretary of State's powers to deal with such disputes. The amendment would also place the Department for Transport and the Home Office under an obligation to provide reasonable assistance to parties drawing up guidance for the purpose of these sections.
The Committee may wish to be aware that the department is already producing a full guidance document that will provide advice to our security partners on these provisions. Under the terms of new Section 29C(3), the Secretary of State is already required to consider such guidance when considering any dispute either about the terms that should be included in a police services agreement, or any variation to an agreement.
This guidance document is undergoing an extensive process of consultation and colleagues from the Association of Chief Police Officers, the Association of Police Authorities, the UK Border Agency and senior industry figures have already made an extensive contribution to this work. While we have sought input from our security partners in the drafting of national guidance, we do not believe that it would be appropriate for these partners to lead on its production. It would not make sense for these partners to set the terms of the guidance that explains how their own legal obligations should be met. This is properly the responsibility of government.
The amendment specifically raises the question of what guidance will be issued in relation to new Sections 29A to 29E, which primarily concern powers of the Secretary of State to be exercised in seeking to resolve a dispute and when providing a determination. Because disputes are likely to vary significantly in nature and complexity, the Bill provides the Secretary of State with broad powers to resolve a dispute. This allows for each to be dealt with in the most appropriate matter. It is therefore not possible to give an undertaking as to precisely how each dispute case will be handled. But I am happy to accept the point made by the noble Baroness that there is concern about this and I hope
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Baroness Neville-Jones: As I understand what the Minister has just said, he takes the view that the department itself will draw up the guidance in consultation, not that the parties will be helped to draw up agreed guidance. I think my understanding of that is correct. It is a pity that they are not permitted, in a sense, a more active participation in drawing up this guidance, but I am glad to hear that they are to be consulted. I beg leave to withdraw the amendment.
Baroness Walmsley: In moving this amendment, I shall speak also to Amendments 152BJ, 152BK, 163 and 164, all of which are grouped with it. We have come to the former Independent Barring Board, which is to be renamed the Independent Safeguarding Authority. My amendments fall into two sub-groups, so I shall deal with them in that way.
Clauses 85 and 88, the second of which relates to Northern Ireland, were introduced in the later stages of the Public Bill Committee in another place, with little explanation given for their introduction and no debate on them at all. The effect of these clauses is to require the new Independent Safeguarding Authority to notify employers and others if it is considering whether to include a person on the barred list. We believe that this is unjust and contravenes natural justice, as well as Parliament's original intention when the Safeguarding Vulnerable Groups Bill passed through Parliament. I worked on that Bill and I remember it clearly.
From July 2010, all people who work or volunteer with children and vulnerable adults will need to be registered with the new ISA. Currently, such people need to obtain an enhanced criminal record certificate. This certificate gives the same information as standard criminal record certificates-details of spent and unspent convictions and cautions and information about whether the individual is on the sex offenders register-but it also includes any other information that, in the opinion of the chief officer of police, might be relevant and ought to be included on the certificate. The type of information that can be included is very broad and does not have to relate to a conviction or even an arrest or prosecution. Under these new clauses, allegations that are not pursued or are dismissed as spurious, and prosecutions that result in an acquittal, can be disclosed to an employer, as can information about behaviour that is not criminal at all. All this is disclosed without the job applicant ever being given an opportunity to offer any explanation. For example, an applicant might be able to demonstrate that allegations of sexual impropriety against a student had been found to be false and had been withdrawn.
An effective vetting system should ensure that those not suitable to working with children or the vulnerable are barred, while also ensuring that potential employers remain unaware of unfair, malicious or spurious allegations. Only when a final decision has been made by the ISA should the employer be informed of the fact. It is undeniable that details of allegations as well as convictions might be relevant in determining suitability to work with children and the vulnerable, but it is up to the expertise of the ISA to determine that.
It is also an unfortunate truth that many careers have been blighted by unfounded accusations of impropriety. Let me give a case study that nicely illustrates the point. Susan successfully applied for a student nurse place through an NHS trust. She had started her first week at university when her enhanced criminal record certificate came back and showed that she was currently on police bail for suspected fraud. This happened after a bank account had been opened in her name, through which thousands of pounds had been processed. No charges were brought against Susan and she agreed to appear as a witness for the prosecution of another suspect, who later pleaded guilty and was sentenced. This could happen to any of us whose identities are stolen. It very nearly happened to me recently.
Susan was given no opportunity to make representations to the police or any other body regarding what information was recorded and included in the enhanced criminal record certificate. When the certificate was received by her employer, naturally she was suspended
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The Safeguarding Vulnerable Groups Act set up three different situations in which a person could be included on the barred list. In the first, an applicant is automatically barred from registration in certain serious prescribed circumstances. In the second, a person is barred and may make representations to be taken off the barred list. The third situation is the one that concerns us here; it is where the ISA is considering barring a person because the person has in the past engaged in certain behaviour or if it appears to the ISA that he or she is a risk to children or vulnerable adults. In this third category, the affected person is entitled to make representations to the ISA as to why they should not be included on the barred list. This would allow those who have had allegations made against them to make those representations without an employer being made aware of them.
We believe that the main purpose of a system such as this is to ensure that only those matters that the ISA deems to properly affect a person's suitability to work with children or vulnerable adults are disclosed to the employer. Clauses 85 and 88 are therefore disappointing to say the least. If passed unamended, they would require the ISA to notify the employer or voluntary agency that it is proposing to include a person on the barred list, but has not yet taken a final decision because it is awaiting representations. This means that, although the ISA has not made any decision and although it may ultimately decide that the person should not be on the barred list, the employer will be made aware of this fact. This seems to defeat the purpose of the creation of an independent body and, indeed, the very process of allowing the person to make representations.
When the Safeguarding Vulnerable Groups Bill was progressing through Parliament, the Government explained that it was necessary for the ISA to receive all the information and for it, not the police, to make the decision on what would be sent to the employer. Mr Parmjit Dhanda said in Standing Committee B on 11 July 2006:
"If information referred to the IBB is obviously false, spurious or insufficient to result in inclusion on a barred list, the intention is that it should not consider the information further than is necessary to establish that fact. There will be no detrimental effects on the person who is the subject of the referral".-[Official Report, Commons, Standing Committee B, 11/7/06; col. 31.]
I wish that were so. On the contrary, though, now the Government propose to allow the employer to have knowledge of the fact that the ISA is considering
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Amendments 163 and 164 would repeal all provisions in the Safeguarding Vulnerable Groups Act 2006 that allow for an enhanced criminal record certificate to be issued regarding a person who is also subject to monitoring by the ISA. Amendment 152BK would introduce a new clause to amend the Police Act 1997 to ensure that an employer who is required to check whether a person is subject to monitoring under the SVG Act cannot also be issued with an enhanced criminal record certificate.
As we have already explained, the ISA was developed to provide an effective new vetting system following the Soham murders tragedy. The Bichard inquiry report proposed vetting through the ISA model. It said:
"The central body would take a decision on the basis of the information above and notify the applicant. At that stage, no other employer, individual or institution would be informed. Under this system, employers would still decide whether or not a job required the postholder to be registered with the central body ... Employers would also retain the ultimate decision about whether or not to employ someone, using references and interviews".
It is understandable that an employer would still need to interview and take up references. It is a reasonable presumption, though, from what I have just read out, that Sir Michael Bichard did not envisage the need for enhanced disclosure to continue once the ISA came into operation, yet that is what is provided for in the Safeguarding Vulnerable Groups Act 2006, and it is clear that the Government intend to operate a dual vetting system through the Bill once the ISA is up and running.
One possible justification for the presumed need to continue with enhanced disclosure is that the ISA will not provide all the relevant details. Liberty, which briefed us on this matter, asked the Home Office why it felt the need for continuing enhanced disclosure from the CRB. It gave the example of a school bus driver, saying that it would be necessary to show not only that he had ISA clearance but also that he did not have a conviction for dangerous driving. We agree that extra disclosure might be necessary to determine suitability in that type of situation. However, that information would be available through an application by the employer for standard disclosure, which shows current and spent convictions, cautions, reprimands and warnings held on the police national computer. What it will not show is any record of allegations. We cannot think of a situation where information not available through standard disclosure might be relevant to the employment of someone who has been cleared by ISA vetting.
The Minister might suggest that the weeding of intelligence information could be done by the police, to ensure that enhanced criminal record certificates do not contain inappropriate information. However, the ability of the police to operate an effective weeding
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"The current regime also leaves the police to make some very difficult judgements, for which they may not be best placed ... There was a clear consensus in the evidence, including that from ACPO, in favour of taking the decision about what information should, and should not, be disclosed out of police hands. That consensus is, in my view, supported by a range of compelling arguments".
Allowing employers to continue to access enhanced criminal record certificates, in addition to checking whether a person has been ISA cleared, potentially breaches Article 8 under the Human Rights Act 1998-the right to respect for private and family life. Article 8 is not an absolute right. Article 8.2 allows for limitations if they are prescribed by law, serve a legitimate purpose and are proportionate. We would argue from these Benches that the continuation of access to enhanced criminal record certificates is not proportionate.
We cannot see justification for the continuation of a belt-and-braces approach for professions where the ISA will now operate. We have laid this group of amendments to ensure that the enhanced disclosure scheme cannot continue side by side with ISA registration. We are merely seeking adherence to a system that is fair and deals with the problems identified by Sir Michael Bichard. The Government must justify themselves if they want to go further. I beg to move.
Lord Skelmersdale: My Lords, Part 8 of the Bill is headed "Miscellaneous" and, my goodness, isn't it just? My noble friend and I will be boxing and coxing on its various clauses and, looking at the Marshalled List, the absence thereof in one particular respect. I start with this rather curious group of amendments.
The first of the amendments tabled by the noble Baroness, Lady Walmsley, seems to rest on what I suspect is a misunderstanding of the legislation. I understood from my reading of the Bill that the Independent Safeguarding Authority, formerly the Independent Barring Board, is only to be empowered to inform employers, not to be given a duty so to do. This, we would of course support. I hope that the Minister can confirm that our understanding of the Bill is correct.
There are occasions where the risk is so great that action must be taken quickly to protect any potential victims. However, we surely all agree that spurious allegations must not be allowed to damage a person's reputation-for example, the student to whom the noble Baroness referred. In essence, if the ISA feels that the allegations that it is investigating are not of sufficient weight as to require immediate notification, it should have the discretion to withhold that information until the accused has had the opportunity to defend themselves and a final decision has been reached.
I should like to hear from the Minister why the Government feel these provisions to be necessary. As a general rule, legislation should not be duplicated unnecessarily and the responsibility for making sure that those who need to know do know should be clear and consistent. I am of course referring to the original Act.
Lord Brett: I thank noble Lords for their contribution to this debate. We can all agree that, where we are seeking to protect children and the vulnerable and not to impose unnecessary and unreasonable burdens on those who seek to serve with them, we need a sense of balance. In that regard, we have to err on the side of the basic requirement of the legislation, which is protection of those who are vulnerable.
Amendments 152BH and 152BJ would remove the provision for the ISA to notify any registered or known regulated or controlled activity providers about a person whom it proposes to bar. When the ISA reaches this stage, it will give the person eight weeks to make representations, after which it will make its final barring decision.
The ISA will reach the stage of proposing to bar someone when it has made a finding of fact as to the person's behaviour or the risk that they pose, and a judgment as to whether it is appropriate to bar them, subject to representations that they will have the opportunity to make. In making a finding of fact, the ISA will rely on information from employers or others who refer information, and from the police. How are the duties of the employer and the ISA to be balanced in such a way as to avoid the kind of examples to which the noble Baroness referred? Employers will have a duty to refer to the ISA those allegations which the employer substantiated and which led to an employee's dismissal, and any allegations that led to the employee's resignation while under investigation. The ISA is also interested in unresolved allegations, and employers may refer those, but they are not under a duty to do so.
The ISA is not interested in allegations that have been shown to be unfounded or malicious. That would go some way to finding reassurance in the case of Susan, who had a problem emanating from the amount of information that was collected, when her court of appeal was initially to the chief constable. The CRB does not own the records that it has; it does not compile them; it has collected that information from the police services, and it is the head of the police service in question-in the relevant county-who has the responsibility of answering the question on whether the information that has been released is reasonable.
The ISA will not make a finding of fact lightly, and will not do so on the basis of a single unresolved allegation. It will look for harmful behaviour that may have been validated through an employer's disciplinary procedures or criminal convictions or cautions, and it will look at the pattern of different, unlinked allegations which might enable it to draw a conclusion. If the ISA reaches a finding of fact and judges that it would be appropriate to bar the individual, that person has the right of representation, but what is it to do if it knows that that person currently works with children or vulnerable adults? The employer or voluntary activity organiser might be unaware of the allegations, if the individual had moved on after the original referral to the ISA. Is it acceptable for the ISA to be aware of a risk of harm and the employer not to be aware, during the period when the individual makes representations, for some two months? Who would be to blame if the individual caused harm in the workplace? The legislation and the ISA itself would, rightly, come under the
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The issue of notification of the employer was included in the policy consultation of the Department for Children, Schools and Families on the vetting and barring scheme in late 2007 and early 2008. The principle of notifying employers was widely supported; what was not as widely supported but received mixed responses was when the notification should be made. The DCSF concluded, in its May 2008 report on the consultation, that employers should be notified at the point when the ISA places an individual under consideration for barring-which points to one of the concerns of the noble Baroness.
On reflection, we revised that view, and Clauses 85 and 88 reflect the policy that the employer should be notified when the ISA proposes to bar someone rather than at the earlier stage when it places them under consideration. I can understand the objection to notification at the earlier stage, before the ISA has reached a view about the referral. The ISA might have been notifying employers prematurely, before reaching a view about the risk of harm. We have met that objection by legislating for notification at the later stage when the ISA has reached a view.
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